Nearly 600 NLRB Decisions Striked Down by Supreme Court

HR Resource
January 22, 2014 — 2,044 views  

The National Labor Relations Board have their work cut out for them, after having over 600 decisions which were taken in 2012 being shot down by the Supreme Court. The Constitution enables the president to make high-level appointments while Congress is in recess, while President Obama made appointed officials to the NLRB in 2012--when this was not the case with the Senate. It is said that the Senate was holding sessions once in three days, so as to prevent the president from exercising his constitutional authority to make these appointments.

How it Unveiled

The court has been skeptical of the recess appointments and faced three dilemmas:

  • If the constitutional phrase meant that the president can make these appointments only when the Congress takes its break between sessions, every year, which barely lasts a few days, or if extended breaks could be taken into account.
  • If the vacancy-during-recess phrase corresponds to vacancies that might occur during the recess period or existing vacancies at that time. With the former, reducing the appointments that the president could make drastically.
  • If the president is allowed to make these appointments even when the Congress is holding sessions once in three days, without conducting any business.

The third point seemed to have induced the case. In 2007, the senate democrats would hold pro-forma sessions to thwart President George W. Bush's attempts to nominate recess appointees. But, Bush refrained from challenging its legitimacy.

When Obama came to the President's role the NLRB membership came down to two, as the Senators had blocked the president's nominees. President Obama made a note of the fact that no business was being conducted and appointed recess members.

How it Started

Noel Canning had filed a case, challenging a ruling by the NLRB, which in turn sparked off this case. During the Noel Canning v. NLRB case last week, the Supreme Court had heard arguments which challenged the president's right at having nominated recess appointees in the NLRB while the Senate was still holding sessions back in 2012. There were indications that the court justices would rule the case against the administration. Both sides, conservative and liberal, seem to be questioning the appointments. Although it doesn't necessarily mean they'll rule a certain way, it definitely brings in the possibility of having to redo a whole lot of decisions for the NLRB. The Supreme Court should be arriving at a decision by summer 2014.

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